McKenzie v. Donnell
| Decision Date | 12 July 1899 |
| Docket Number | 8314 |
| Citation | 52 S.W. 214,151 Mo. 431 |
| Parties | McKenzie et al., Plaintiffs in Error, v. Donnell et al |
| Court | Missouri Supreme Court |
Error to Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Affirmed (with modifications).
Wash Adams and N. F. Heitman for plaintiffs in error.
(1) After a man is duly adjudged insane, he is thereafter conclusively incapable of transacting business in law however sane he may be as a matter of fact, until he is regularly and properly adjudged sane again by the method pointed out by the statute. Rannells v. Garner, 80 Mo. 474; Keihne v. Russell, 53 Mo.App. 667; Redden v. Baker, 86 Ind. 191; Hughes v Jones, 116 N.Y. 67; Cochran v. Van Surley, 32 Am. Dec. 574; Hovey v. Hobson, 89 Am. Dec. 705; Wadsworth v. Sharpstein, 8 N.Y. 388; Pearl v. McDowell, 20 Am. Dec. 199; L'Amoureaux v. Curby, 22 Am. Dec. 655; Leonard v. Leonard, 14 Pick. 280; 1 Greenl., Evi., sec. 550; Imholp v. Witiner, 31 Pa. St. 245; Secs. 5513 and 5549, R. S. 1889. (2) Under the above doctrine, McKenzie has been conclusively incapable of transacting business ever since 1869, for the reason that since that date he has never been adjudged sane in the method pointed out by the statute. [Section 5549, R. S. 1889.] The pretended sanity verdict of 1870 is void on its face for want of jurisdiction; because the record shows that the allegation in writing of his restoration was not verified by oath or affirmation. Bank v. Garton, 40 Mo.App. 113; Charles v. Morrow, 99 Mo. 646; State v. Staley, 76 Mo. 158; Harness v. Cravens, 126 Mo. 233; Quigley v. Bank, 80 Mo. 297. (3) The record is not silent as to the attributes of the jurisdictional allegation under section 5549, R. S. Mo., 1889. The doctrine of presumption applies only where the record is silent. Where the record is not silent, but undertakes to recite the facts giving the court jurisdiction, the court will not indulge in presumptions to eke out imperfect recitals of the record. 1 Herman on Estop., sec. 384; Galpin v. Page, 18 Wall. 366. (4) Insanity proceedings, where a man is deprived of his liberty and control of his property, are to be strictly construed. Territory v. Sheriff, 6 Mont. 297; Strong v. Birchard, 5 Conn. 357; Appeal of Menser, 119 Pa. St. 115; Cox v. Gress, 51 Ark. 224. (5) The petition, and notice to the insane man of the petition, under sec. 5513, R. S. 1889, are jurisdictional facts, and must appear on the record affirmatively. By analogy, and on reason, the allegation in writing verified by oath or affirmation, that the insane man has been restored, as well as notice to the insane man, of the restoration proceedings, are jurisdictional facts also. Crow v. Meyersietch, 88 Mo. 414; Hutchins v. Johnson, 12 Conn. 376; Hull v. Howd, 27 Am. Dec. 696. (6) No presumptions will be indulged in to supply the want of jurisdictional facts under section 5549. Werz v. Werz, 11 Mo.App. 34; Pulaski Co. v. Stuart, 28 Gratt. 879; McCoy v. Zane, 65 Mo. 11; Cragin v. Railroad, 71 Ill. 180. (7) That the statute intended that notice should be given is implied. Ray Co. v. Barr, 57 Mo. 290; State ex rel. v. St. Louis, 1 Mo.App. 503; Gray v. Railroad, 81 Mo. 135; Durvessetts v. Hale, 38 Mo. 346. (8) When a court of limited jurisdiction acts without authority, no writ of error lying on its judgments, the validity of its proceedings may be questioned in a collateral proceeding. State to use v. Stephenson, 12 Mo. 183. (9) Jurisdiction as to insanity proceedings is statutory and notice is required. North v. Joslin, 59 Mich. 624; Palmer v. Palmer, 38 N.H. 418; In re Price, 8 N.J.Eq. 533; Appeal of Meurer, 119 Pa. St. 115; Cox v. Gress, 51 Ark. 224; Hutchins v. Johnson, 12 Conn. 376; Hull v. Howd, 27 Am. Dec. 696; Eslava v. Lepretre, 21 Ala. 503. (10) There can be no record made by a court having no jurisdiction. King v. Robinson, 54 Am. Dec. 617. (11) A man once adjudged insane ought not to be restored to his legal capacity, without great caution. In re Hoag, 7 Paige 312. And notice to insane man necessary. In re Weis, 1 C. E. Green (N. J.) 318. The proceedings are summary and must be strictly construed. They should show on their face such facts, and especially notice, as will authorize action. Territory v. Sheriff, 6 Mont. 297. Record must show notice or proceedings are void. McCurry v. Hooper, 12 Ala. 823. (12) The deed of an insane person is voidable as against his immediate grantee and all subsequent grantees and mortgagees. In avoiding the deed, his heirs are under no obligation to restore the consideration, unless such consideration was received by him and still remains intact, or unless it was in law a benefit to him. There is no obligation whatever, either upon him or his heirs, to pay a mortgage made by a subsequent grantee, of which neither he nor his heirs received the benefit. In such case a court of equity, at the suit of the heirs, will cancel the mortgage without restoring the consideration. This point is ruled in the following cases. Rogers v. Blackwell, 49 Mich. 192; Hull v. Louth, 109 Ind. 315; Physio Medical College v. Wilkinson, 108 Ind. 314; Hovey v. Hobson, 53 Me. 451; Crawford v. Scoville, 94 Pa. St. 48; Somers v. Pumphrey, 24 Ind. 238; Loan Ass'n v. DeLashmut, 67 F. 399; Dewey v. Allgire, 37 Neb. 6; Rea v. Bishop, 41 Neb. 202; Chew v. Bank, 14 Md. 299; Seaver v. Phelps, 11 Pick. 304; Flanders v. Davis, 19 N.H. 139; Brigham v. Fayerweather, 144 Mass. 51; Gibson v. Soper, 6 Gray 297; Rogers v. Walker, 6 Pa. St. 371. (13) The contracts of the insane are voidable for the same reason and upon the same terms as those of infants. Paul v. Smith, 41 Mo.App. 282; Halley v. Troester, 72 Mo. 76; Tolson v. Garner, 15 Mo. 494; Heard v. Lack, 81 Mo. 615; Ferguson v. Bell, 17 Mo. 347; Huth v. Railroad, 56 Mo. 202. (14) An infant in possession of the consideration after age must restore it; when he has lost, sold or destroyed the consideration during his minority, he need not restore it. Crais v. Van Bebber, 100 Mo. 584; Lacy v. Pixley, 120 Mo. 383; Englebert v. Troxel, 40 Neb. 195; Price v. Fierman, 27 Vt. 269; Chandler v. Simmons, 97 Mass. 508; Mustard v. Wahlford's Heirs, 15 Gratt. 329; Brawner v. Franklin, 4 Gill 463; L'Amoreaux v. Curby, 2 Paige 422; Wadworth v. Sharpstein, 8 N.Y. 388; Hughes v. Jones, 116 N.Y. 67; French v. McSilver, 61 Miss. 187; Ins. Co. v. Blankenship, 94 Ind. 535.
William C. Forsee for defendants in error.
(1) Stewart took the deed of trust as an act of kindness to McKenzie and his family. It is not a case of bargain and sale where each was endeavoring to get the advantage, or even to hold his own. The parties were not dealing at arm's length. Neither party expected that Stewart would or could make anything out of the transaction. He might lose something, but under no circumstances could he gain anything by the transaction. Unless Stewart agreed to take the deed of trust McKenzie must suffer heavy pecuniary loss. Stewart, in order to protect McKenzie against this loss, accepted the deed of trust. It resulted in Stewart's losing $ 327 with twenty years' interest thereon. At the sale under the trust deed, in 1877, these defendants in error were innocent purchasers for full value. Under these circumstances the executed contract can not be, in equity, rescinded, upon any terms whatever, and hence plaintiffs in error can not complain of the final decree, or of any item therein contained. 2 Pomeroy, Eq. Jur., sec. 946; Bishop on Cont secs. 969, 233; Ex parte Hall, 7 Vesey 264; Selby v. Jackson, 6 Beaven 204; Snook v. Watts, 11 Beavan 105; Steadman v. Hart, Kay 607; Rhoades v. Fuller, 139 Mo. 179; Thorpe v. Hanscom, 64 Minn. 201; Memphis Nat. Bank v. Neely, 97 Tenn. 120; Arthurs v. Bridgewater Gas Co., 171 Pa. St. 532; Crawford v. Thompson, 161 Ill. 161; Cockrill v. Cockrill, 79 F. 143. (2) Mrs. Donnell was a bona fide purchaser. Conceding, for argument only, that the contract might have been rescinded as between McKenzie and Stewart, the immediate parties to it, yet, as the land was sold at public outcry, for full value, to one who bought in good faith and without notice of the alleged incompetency of McKenzie, the contract can not, as against her, be rescinded upon any terms. Bishop on Cont., sec. 970, note 4; Crawford v. Thompson, 161 Ill. 161; Arthurs v. Bridgewater Gas Co., 171 Pa. St. 532; Beals v. Sea, 10 Pa. St. 56; Ashcroft v. DeArmond, 44 Ia. 229; Riggs v. Green, 80 N.C. 236; Neill v. Morley, 9 Vesey 478. (3) The sanity judgment of 1870 is good against collateral attack. (a) It was rendered by a court of record. R. S. 1865, chaps. 133 and 137. (b) It was not necessary that the judgment should recite either that a petition in writing was filed, or that it was verified by affidavit. It was no more necessary to recite either of these facts than it was to set out the petition and affidavit in haec verba. Until it was conclusively shown that it was not properly verified, the judgment is unassailable upon collateral attack. Huxley v. Harrold, 62 Mo. 522; Adams v. Cowles, 95 Mo. 509; Freeman v. Thompson, 53 Mo. 193; Gray v. Bowles, 74 Mo. 424; State to use v. Williamson, 57 Mo. 198; Werz v. Werz, 11 Mo.App. 31; Karnes v. Alexander, 92 Mo. 671. (c) Though the existence of any jurisdictional fact may not be affirmed upon the record, it will be presumed, upon a collateral attack, that the court, if of general jurisdiction, has acted correctly, and with due authority; and its judgments will be as valid as though every fact necessary to jurisdiction affirmatively appeared. Freeman on Judg., sec. 124; Adams v. Cowles, 95 Mo. 509. (d) The county court being a court of record, holding regular terms at stated periods, and clothed with power to render the judgment here attacked, "its judgments and orders in such matters are entitled to the same presumption of verity as is...
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